Is the NLRB following a Mayan calendar? It seems there is a flurry of activity coming from the board as we head into the calendar-year end. Included in that activity is the release of Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (2012). This case has been on the radar for many social media and labor law followers because it was one of the first to address a discharge from employment on the basis of social media activity.
The board decisions from earlier this year on social media were not especially instructive on the issue of how social media statements may be construed as protected concerted activity. Hispanics United is different in that it squarely addressed this question. Unfortunately, and as expected by many NLRB followers, things did not turn out well for the employer.
Hispanics United started as a dispute between employees at an organization that assisted victims of domestic violence. One employee, Lydia Cruz-Moore, had a history of repeatedly criticizing the efforts of other employees, including Marianna Cole-Rivera. One day Cruz-Moore texted Cole-Rivera that she was going to go to the executive director of Hispanics United with her concerns. Cole-Rivera took to Facebook after receiving this text and posted, “Lydia Cruz, a coworker feels that we don’t help our clients enough at [Hispanics United]. I about had it! My fellow coworkers how do u feel?” Four off-duty employees responded to this post and disagreed with Cruz-Moore alleged critique. Cruz-Moore saw and responded to these posts, presented them to the executive director, and he discharged Cole-Rivera and the other employees who responded to her post on Facebook.
The board’s opinion found that the employer violated § 8(a)(1) of the National Labor Relations Act in terminating the employees’ employment in response to the Facebook posts. The nitty-gritty of the dispute between the majority and dissenting opinions was over whether the employee communications were for the purpose of mutual aid. The majority inferred from the circumstances surrounding the posts that they were a first step toward defending Cruz-Moore’s complaints. Dissenting Member Hayes argued that nothing suggested the posting employees were thinking of engaging in activity for mutual aid and protection.
The Hispanics United decision may be troubling for employers because the board appears to set a low threshold for interpreting social media activity as protected concerted activity. In this case, there appeared to be a direct connection between the Facebook posts and the decision to discharge, but other cases are unlikely to be so clear cut. Many individuals take to social media to vent their employment frustrations. But, as anyone knows, it is much easier to vent on social media than to act on those complaints, and a vast majority of people have no intention of acting any further. In light of this, future courts who build upon this issue may want to consider the analysis of Member Hayes who wrote,
“[T]he mere fact that the subject of discussion involved an aspect of employment – i.e., job performance – is not enough to find concerted activity for mutual aid and protection. . . . While the Facebook posts evidenced the employees’ mutual disagreement with Cruz-Moore’s criticism of their job performance, the employees did not suggest or implicitly contemplate doing anything in response to this criticism.”
Some employers may question whether employees should enjoy such strong protection under the NLRA from an adverse employment decision in a more complex situation where poor job performance is also a consideration and the connection to activity undertaken for the purpose of mutual aid and protection is weak. The bottom line is that this legal issue has taken another step forward by the Board’s decision, but it is still unlikely to be the final one. Employers need to consider whether an adverse employment decision coincides with social media activity and consult counsel to address how the NLRA might be involved.